By some of its comments, Comcast appeared to signalthat the process was down to figuring out which conditionswould be placed on the $13.75 billion deal to combinethe No. 1 U.S. cable operator’s national programming assetswith NBCU, a unit of General Electric, and which of thoseterms Comcast would be able to accept. (Comcast wouldcontrol 51% of the resulting JV.)

COMCAST HINTS AT TERMS

In meetings with FCC staffers, according to documentsat the agency, Comcast has been talking about the difficulties of an online programming access condition andan arbitration process for online distribution, includingif it were to be applied to national programming networks,as Rep. Henry Waxman (D-Calif.), the House Energy& Commerce Committee chairman, called for lastweek.

Comcast agreed to accept at least one online conditionas part of the deal, though it was roundly criticized as containingtoo many caveats to be meaningful.

The caveats are that “Comcast should have the right,consistent with industry practice, to require that unaffiliated content suppliers not provide their programmingfor free over the Internet during an initial window”; thatit “should also have the right to obtain from content suppliersparity treatment with other distributors, online orotherwise”; and that “Comcast should be able to negotiatefor a limited period of exclusivity for promotional programming.”

“This does not fix the problem, since it leaves severalbig loopholes,” said Andrew Schwartzman of the MediaAccess Project, which has been pushing for online conditions.“Comcast can still insist on [most-favored-nation]clauses, which could restrict the terms of such an offering.It could also impose temporary exclusivity and othertime-based restrictions short of an absolute prohibitionon carriage.”

Comcast’s agreement to the condition came in a responseto arguments by online streaming site Ivi TVthat the MSO’s contracts with cable networks are “theonly impediment” to its video-programming distributionmodel and have prevented various nets from dongbusiness with Ivi. Comcast said Ivi’s claims are “withoutmerit.”

Comcast was fighting back on several fronts in responseto what felt more and more like last-ditch efforts to conditiona deal whose approval was imminent.

The American Cable Association, which representssmaller, independent cable operators, signaled as much.Its three top executives, including president and CEO MattPolka, said they thought the deal was going through.

But Comcast was taking no chances. It shot back at modemmaker Zoom Telephonics, which two weeks ago saidin an FCC complaint that Comcast’s modem certification process was really meant to discouragecompetition to its leased modems. Dealcritics latched onto Zoom’s complaint asevidence of the need for conditions.

Comcast asked the FCC to dismiss thecomplaints on the grounds that Zoomhad omitted Comcast’s various proposedsolutions to the problem, including afast-track self-certification process forZoom’s retail modems at no extra cost.

Comcast also fired back at Internetbackbone-services company Level 3 Communications’complaint that Comcast was violating FCC network-opennessguidelines by charging for Level 3’s boost in trafficafter it struck a deal to deliver bandwidth-heavy Netflixonline video.

Another signal the government was wrapping up its reviewwas the FCC’s receipt of letters from top House Democratswho will soon be in the minority. Waxman and Rep.Ed Markey (D-Mass.), the former House CommunicationsSubcommittee chairman, sent letters to FCC chairman JuliusGenachowski asking for program-access, carriage andonline conditions, saying they were necessary if the dealgoes through.

Both included network-neutrality provisions amongtheir must-haves for the deal, which one highly placedFCC source said would likely be part of the agency’s draft,mirroring the proposals in the draft network-neutralityitem now circulating among the commissioners.

Comcast said it was continuing to work with the FCC onthe issues raised by Waxman.

MARTIN RESURFACES

A longtime Comcast nemesis — former FCC chairmanKevin Martin — surfaced again in the form of a WashingtonPost advertisement by the National Coalition ofAfrican American Owned Media, as well as the Zoomcomplaint.

The NCAAOM ad called on President Obama to makethe FCC condition the merger on Comcast’s promisingthat 10% of its channel lineup would be occupied by 100%African-American-owned networks, and to promise notto lay off any employees.

NCAAOM president Stanley Washington, a vocal opponentof the deal, said his organization was preparing to filea lawsuit against the FCC for gross negligence in “not protectingAfrican-Americans in media.”

Comcast has pledged to add 10 independent networks,with at least four of those with majority, though not 100%,African American control. (Another four of those wouldhave Hispanic majority ownership.)

But that isn’t enough as far NCAAOM is concerned.

Now a partner with law firm Patton Boggs, Martin, a Republicanwho headed the FCC during the George W. Bushadministration, was enlisted by NCAAOM to help make itscase for conditions on the deal, and is listed on the AboutUs section on the organization’s Web site.

Martin was also one of the attorneys on the Zoom complaint,a point Comcast made in its response. Zoom presidentFrank Manning told Multichannel News that heapproached Martin because “he was unlikely to havea conflict that would preclude him from representingZoom.”

Martin has also been representing financial media firmBloomberg LP, also a deal opponent, as part of the PattonBoggs team.